Ask a Divorce Lawyer: The mother lost her custody rights so shouldn’t I automatically be given custody?

Question: I recently found out that my child’s mother has lost custody of our daughter due to her fourth arrest in as many years. My child has been placed in the care of her grandmother. 

As the father of the child are there any legal motions I have to go through to get custody or does the grandmother automatically have to turn her over to me since I am next of kin? Paternity has been established through the state.

 

Answer: Though I am licensed to practice law in Michigan, Cordell & Cordell has attorneys in Florida, and I strongly encourage you to consult with an attorney in your state because I can only give you general information. You should not rely upon this information as creating an attorney-client relationship, and you should seek counsel in your area for further instructions and suggestions within the parameters of the laws of your state.

That being said, there are common themes in child custody and visitation among states, one of which is that a father’s rights in a paternity case are usually defined in the order establishing paternity. Michigan courts call this order a “filiation order,” but your particular court may have titled it something else. Consult your order to determine what rights, if any, you have to custody and visitation. You should also consult the order that placed your daughter with her grandmother. This may be an informal, temporary placement or a formal guardianship placement. That order will also define what rights, if any, you have to custody and visitation. 

Assuming you were adjudicated the natural and legal father and have custodial rights (i.e., your rights were not terminated), under federal law you do have rights to your daughter.  These laws include the Child Abuse Prevention and Treatment Act (CAPTA) and the Troxel case, and states may afford greater rights. Your federal rights include the right to notice of child abuse and neglect proceedings and the right to be presumed fit to parent your daughter, over a third party like her grandmother; however, the deciding court may determine your daughter’s best interests require placement with her grandmother. 

Only an attorney in your state who can view your paperwork can advise you of what “legal motions,” if any, you can or should file. Please consult one immediately, as there are specific timeframes under federal law for handling these child abuse and neglect cases.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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